Don’t (Un)Intentionally Disinherit Yourself: The Effect of Withholding a Will

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Don’t (Un)Intentionally Disinherit Yourself: The Effect of Withholding a Will

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When someone dies with assets in his or her estate, the estate must be probated in the county in which the person resided at the time of death.

When the estate is probated, the individual named as Executor in the Will submits the will to the probate court and asks for the will to be admitted to probate.  The Executor is then given authority to act on behalf of the estate, and the Executor manages and finalizes the decedent’s estate.  In most cases, the process is relatively quick and easy.

Many times, the decedent took steps prior to death to avoid probate.  For example, any assets owned by a trust or that have a beneficiary designated avoid probate.

If the decedent successfully avoided probate, the Executor may never present the Will to the probate court because there was no need to do so.  Nonprobate proceedings are quicker and easier than going through the probate process.

But, what happens if a probate asset is discovered in the future?  In most cases, the Executor will present the Will for probate and apply for authority to act on behalf of the estate at that time.

In our experience, this is typically not a problem.  However, depending on the family circumstances, waiting to present the Will to the probate court can have a big impact on the Executor or other beneficiaries who knew the decedent had a Will.

Under Ohio law, no property can pass to a beneficiary named in a will if the beneficiary knew of the existence of the Will but failed to present the Will for probate within one year of the decedent’s death.

For this disinheritance as a matter of law to apply, the beneficiary must know of the Will’s existence, have power to control the document, and intentionally conceal it, withhold it, or neglect or refuse to cause it to be offered to probate within a year of the decedent’s death.

While it sounds unlikely, it is not hard to imagine a situation where this provision can come into play.  Let’s say a parent dies, leaving everything to her two kids in her will.  The two kids do not get along.  Daughter is the Executor and has mom’s original Will.  Most of mom’s assets were non-probate, so Daughter does nothing with mom’s Will.

Two years later, the kids discover an investment account that mom had at the time of her death that had no beneficiary designations.  The account is a probate asset.  Six months ago, the market tanked and the account lost half of its value.

Daughter doesn’t want her brother to get half of the probate estate.  She intentionally withholds the Will so that her brother doesn’t get any more inheritance than he already did.  Son can certainly assert that Daughter should not be a beneficiary of the estate.

Let’s take one more example.  Perhaps Mom left everything to her two kids in her Will, but states that Daughter gets 10% and Son gets 90%.  Son is the Executor, but Daughter finds the Will in Mom’s house before Son does.  Rather than presenting Mom’s Will for probate, Daughter conceals the Will and applies to become Administrator of Mom’s estate.  Under Ohio law, if there is no will, typically the children will equally share in the estate.  By withholding the Will, Daughter gets 50% of the estate instead of the 10% she is entitled to under the Will.  If Son later discovers his sister’s concealment, she could lose her entire probate share under Ohio law.

If an argument is successful, the beneficiary who withheld the Will will be treated as though she died before the decedent.  In the above examples, Daughter will be treated as if she predeceased her mother.

Her share would then be distributed according to the terms of the Will.  Perhaps Daughter’s children equally split Daughter’s share if Daughter predeceases her mother.  Perhaps Son becomes the sole beneficiary if Daughter predeceases her mother.

The probate process is not something people deal with on a daily basis.  It can be complicated without the proper guidance.  If a family member passes away and you are named in the Will, either as a beneficiary or as Executor, it is important to seek legal counsel to be sure you are following the correct procedure regarding the estate.